Smith's Estate, In re

• Decision Date: 03 July 1956
• Docket Number: No. 33598,33598
• Court: Washington Supreme Court
• Parties: , 63 A.L.R.2d 299 In the Matter of the ESTATE of Ernest E. SMITH, Deceased. Adele BENSON, Virginia McAllister Smith and A. J. Menny, as Administrator w/w/a of the Estate of Ernest E. Smith, Deceased, Appellants, v. Virginia H. NICHOLSON, Respondent.

Page 229

49 Wn.2d 229

299 P.2d 550, 63 A.L.R.2d 299

In the Matter of the ESTATE of Ernest E. SMITH, Deceased.

Adele BENSON, Virginia McAllister Smith and A. J. Menny, as

Administrator w/w/a of the Estate of Ernest E.

Smith, Deceased, Appellants, v. Virginia H. NICHOLSON, Respondent.

No. 33598.

Supreme Court of Washington, Department 1.

July 3, 1956.

Clarence L. Gere, Seattle, for appellants.

Bogle, Bogle & Gates and Robert A. Stewart, Seattle, for respondent.

SCHWELLENBACH, Justice.

Ernest E. Smith died testate. His will provided:

'Article First: I give and bequeath unto each of my children, namely, Marion Gildberg, residing at Seattle, Washington, Adelle Benson, residing at Portland, Oregon, Virginia McAllister, residing at Cottage Grove, Oregon; Georgia Dolphus, residing at Long Beach, California, and Ernest E. Smith, Jr., residing at Monroe, Washington, the sum of one dollar.

'Article Second: I hereby give, devise and bequeath all of the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever character, and wheresoever situated, unto my beloved wife, Jessie M. Smith.'

Of the 'children' mentioned in the will, only Ernest E. Smith, Jr., was a child of the decedent. He was born of the marriage between decedent and Jessie M. Smith. The others were the issue of a previous marriage between Jessie M. Smith and Jorgen P. Gildberg.

Marion Gildberg, Georgia Dolphus, Ernest E. Smith, Jr., and Jessie M. Smith, predeceased Ernest E. Smith. Ernest E. Smith, Jr., left as his issue one child, Virginia H. Nicholson.

The will was admitted to probate and in his final report the administrator with will annexed petitioned that the estate be distributed equally to Adele Benson, Virginia McAllister Smith, and Virginia H. Nicholson, the granddaughter. The latter, claiming to be the sole heir, filed objections and the trial court ruled that Adele Benson and Virginia McAllister Smith, as stepchildren of the decedent, had no right of inheritance from him. One dollar was ordered to be distributed to each of the surviving stepchildren in accordance with the terms of the will and the residue of the estate distributed to Virginia Nicholson. Adele Benson and Virginia McAllister Smith appeal.

Jessie M. Smith having predeceased her husband, the clause in his will leaving her the residue of his eatate, lapsed. There being no further residuary provision, that portion of his property passes by the law of descent to his heirs-at-law. In re Sims' Estate, 39 Wash.2d 288, 235 P.2d 204.

The question presented in this appeal is whether a stepchild may inherit from his stepparent as an heir-at-law. At common law the relationship of stepparent and stepchild conferred no rights and imposed no duties. The question of whether appellants may inherit in this instance depends wholly upon the statutes of descent and distribution. The property before the court was Ernest E. Smith's separate property, having been acquired by him from the community estate of himself and Jessie M. Smith under probate procedure.

RCW 11.04.020 provides in part:

'When any person dies seized of any lands, tenements or hereditaments, or any right thereto, or entitled to any interest therein, in fee simple, or for the life of another, as his separate estate, not having devised the same, they shall descend subject to the debts as follows:

* * *

* * *

'Fifth. If the decedent leaves no husband or wife the estate goes in equal shares to his children, and to the issue of any deceased child, by right of representation.

* * *

* * *

'The words 'issue,' 'child' and 'children' wherever used in this section shall be construed to include lawfully adopted children.'

RCW 11.04.030(3) provides:

'The residue, if any, of the personal estate shall be distributed among the same persons as would be entitled to the real estate by RCW 11.04.020, and in the same proportion as provided, excepting as herein further provided; * * *.'

A child is the son or daughter, in relation to the father or mother. A stepchild is the son or daughter of one's wife by a former husband, or of one's husband by a former wife.

The court found that there was no evidence of the decedent having lawfully adopted Adele Benson or Virginia McAllister Smith.

Stepchildren are not included in the terms of the last paragraph of RCW 11.04.020 by implication. The status of stepchildren was considered by the legislature in a separate section. RCW 11.08.010 provides for inheritance from a stepparent in order to avoid escheat of the property to the state. The right of a stepchild to inherit from a stepparent is limited to the circumstances outlined therein.

Appellants contend that the legislature eliminated any distinction between kindred of the half blood and of the whole blood when it enacted RCW 11.04.100.

'The degree of kindred shall be computed according to the rules of the civil law, and the kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the intestate by descent, devise, or gift from one of his ancestors, or kindred of such ancestor's blood, in which case all those who are not of the blood of such ancestors shall be excluded from such inheritance. The words 'kindred of such ancestor's blood' and 'blood of such ancestors' shall be construed to include any child lawfully adopted by one who is in fact of the blood of such ancestor.'

In State v. Bielman, 86 Wash. 460, 150 P. 1194, 1195, the defendant was charged with the crime of incest with his stepdaughter, in violation of § 2455, Rem. & Bal. Code, which provided:

'Whenever any male and female persons, nearer of kin to each other than second cousins, computing by the rules of the civil law, whether of the half or the whole blood shall have sexual intercourse together, both shall be guilty of incest * * *." We said:

'It is contended by the appellant that this statute refers only to persons who are blood relations nearer of kin to each other than second cousins, computing by the rule of the civil law. We think this contention must be sustained. The ordinary meaning of the word 'kin' is 'a blood relation.' See 'Kin,' 2 Words & Phrases, Second Series, p. 1306 [23 Words & Phrases, Perm. Ed., p. 546]. Warvelle, Real Property (3d ed.), § 168. The phrase 'whether of the half or the whole blood,' used in section 2455, indicates quite clearly that the section refers only to kindred of the blood, and not kindred by affinity. We are of the opinion, therefore, that this section does not apply.'

In In re Field, 182 App.Div. 266, ...